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BORIS KNISCH v. WORKMEN'S COMPENSATION APPEAL BOARD (JEROME ENTERPRISES) (01/29/88)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: January 29, 1988.

BORIS KNISCH, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (JEROME ENTERPRISES), RESPONDENTS

Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Boris Knisch v. Jerome Enterprises, Inc., No. A-91663.

COUNSEL

Larry Pitt, for petitioner.

Ronald F. Bove, for respondent.

Judges MacPhail and Colins, and Senior Judge Narick, sitting as a panel of three. Opinion by Senior Judge Narick. Judge MacPhail dissents.

Author: Narick

[ 113 Pa. Commw. Page 205]

This is an appeal by Boris Knisch (Claimant) challenging the authority of the Workmen's Compensation Appeal Board (Board) to fashion a supersedeas order which in effect both grants and denies a supersedeas petition because it withholds partial compensation from the Claimant as well as attorney fees, litigation costs and medical expenses. For the reasons set forth herein, we must quash the appeal.

Claimant sustained a work-related injury on March 18, 1982 while in the course and scope of his employment with Jerome Enterprises (Employer). On August 26, 1982, Employer filed a petition seeking a suspension of benefits as of July 15, 1982. Also, Employer requested a supersedeas from the referee which was denied. On April 2, 1986, the referee dismissed Employer's petition for suspension of benefits and Employer appealed the referee's decision to the Board. On December 5, 1986, the Board issued an order denying Employer's request for supersedeas as to 80% of Claimant's compensation but granted as to attorney's fees, costs and medical expenses. On December 22, 1986, Claimant filed a petition for review with this Court alleging that the Board's partial grant of Employer's supersedeas petition was improper. On June 19, 1987, the Board issued a final decision which affirmed the referee's decision denying Employer's request to suspend worker's compensation benefits.

There are two issues presented for our resolution in this appeal: (1) whether Claimant's appeal herein is an

[ 113 Pa. Commw. Page 206]

    interlocutory appeal involving a moot issue and (2) whether the Board erred in fashioning a supersedeas order which both grants and denies supersedeas by withholding 20% of Claimant's compensation, attorney's fees, litigation costs and medical expenses. In reviewing a decision of the Board, our scope of review is limited to a determination of whether constitutional rights were violated, an error of law was committed, or whether necessary findings of facts are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C. S. § 704; Estate of McGovern v. State Employees' Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986).

Preliminarily, we must determine whether the instant appeal is from an interlocutory order. It is well settled that appellate jurisdiction will only lie from a final order, unless otherwise permitted by statute. See Pugar v. Greco, 483 Pa. 68, 72, 394 A.2d 542, 544 (1978).*fn1 A final order is one which: (1) ends litigation, or alternatively disposes of the entire case; or (2) effectively puts a litigant out of court, or precludes a party from presenting the merits of his claim. Pugar at 73, 394 A.2d at 544-45.

Applying the definition of a final order to the case at bar, it is clear that Claimant's appeal of the Board's partial supersedeas order is not an appeal from a final order but from an interlocutory order because the supersedeas order of the Board did not end the litigation nor did it put Claimant out of court. An appeal from an interlocutory order may be taken as of right pursuant to Pa. R.A.P. 311*fn2 or may be taken by permission pursuant to Chapter 13 of the Pa. R.A.P.*fn3

[ 113 Pa. Commw. Page 207]

Pa. R.A.P. 1311(b) pertinently provides:

Permission to appeal from an interlocutory order containing the statement prescribed by 42 Pa. C. S. § 702(b) may be sought by filing a petition for permission to appeal with the prothonotary of the appellate court within thirty days after entry of such order in the lower court or other government unit with proof of service on all other parties to the matter in the lower court or other government unit and on the government unit or clerk of the lower court, who shall file the petition of record in such lower court. . . .

Also, 42 Pa. C. S. § 702(b) states:

When a court or other government unit, in making an interlocutory order in a matter in which its final order would be within the jurisdiction of an appellate court, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the matter, it shall so state in such order. The appellate court may thereupon, in its discretion, permit an appeal to be taken from such interlocutory order.

In the instant case, Claimant did not petition this Court for permission to file an interlocutory appeal. Accordingly, because Claimant's appeal herein is from an interlocutory order for which permission to appeal has not been granted, we must quash the appeal. We further note that although Employer does raise the interlocutory nature of Claimant's appeal in its brief, the appropriate procedure was to file a motion to quash the appeal. Nevertheless, the question of the appealability of an order goes to the jurisdiction of the court requested to address the question. See Fried v. Fried, 509 Pa. 89,

[ 113 Pa. Commw. Page 208501]

A.2d 211 (1985). To conclude, because we are without jurisdiction to entertain the appeal herein, we may on our own motion quash the appeal. Fried.*fn4

Therefore, we must quash the appeal herein and are powerless to address the remaining issues raised by the parties.

Order

And Now, this 29th day of January, 1988, Petitioner's appeal in the above-captioned matter is hereby quashed.

Disposition

Appeal quashed.


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